R (Simpson) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Neutral Citation | [2022] EWHC 3181 (Admin) |
| Year | 2022 |
| Court | King's Bench Division (Administrative Court) |
2022 Dec 1; 16
Prisons - Prisoners’ rights - Release on licence - Secretary of State referring determinate sentence prisoner to Parole Board in place of automatic release on serving requisite custodial period - Whether Secretary of State under duty to make referral decision within reasonable period of time - Whether Secretary of State believing”on reasonable grounds” that prisoner would pose significant risk of serious harm to public if released - Whether reasonable grounds requiring material change of circumstances since prisoner sentenced - Whether Secretary of State unlawfully departing from published policy -
The claimant was convicted of criminal offences that were specified offences under section 224 of the Criminal Justice Act 2003F1 and sentenced to a determinate term of ten years’ imprisonment. In August 2022, the day before the claimant was due to be released on licence pursuant to section 244(1) of the 2003 Act having served the requisite custodial period of five years, the Secretary of State referred the claimant’s case to the Parole Board pursuant to section 244ZB(3) of the 2003 Act on the basis that he believed “on reasonable grounds” within section 244ZB(2) that the claimant would, if released, pose a “significant risk” to members of the public of serious harm occassioned by the commission of specified offences. The decision to refer was subsequently reaffirmed in September and November 2022. The effect of the referral was that the claimant would not be released until the Parole Board was satisfied that it was no longer necessary for the protection of the public for the claimant to be confined or she reached the end of her sentence. The claimant brought a claim for judicial review of the referral on the grounds that: (i) the August referral had been made following unreasonable delay which had the effect of unlawfully prolonging the claimant’s detention; (ii) the Secretary of State’s belief had not been “on reasonable grounds”, particularly since there had been no material change of circumstances that justified departing from the assessment of the sentencing judge that the claimant did not pose a “significant risk” of serious harm to members of the public through the commission of specified offences; and (iii) each of the referral decisions was unlawful because the Secretary of State had unlawfully departed from his policy on referrals without having good reason for doing so.
On the claimant’s application for permission to proceed with the claim—
Held, (1), refusing permission to proceed on ground (i), that there was no general common law duty on public bodies to make decisions or undertake particular actions within a reasonable period of time; that, rather, whether a decision-maker was under a duty to make a particular decision or undertake a particular action within a reasonable period of time would depend on the statutory provisions involved and the context, as would the consequences of failing to adhere to any duty which was found to exist; that, on a true construction, section 244ZB of the Criminal Justice Act 2003 did not contain an implied duty on the Secretary of State to act with reasonable expedition when deciding whether to refer a prisoner’s case to the Parole Board under section 244ZB(3); that, in particular, section 244ZB did address matters of timing and redress for delay where relevant but had made no such provision regarding a decision to refer under section 244ZB(3), instead contemplating that such a decision could be made up to and including a time close to the date on which the prisoner would otherwise have been released on licence; and that, accordingly, the Secretary of State’s decision in August 2022 to refer the claimant’s case to the Parole Board under section 244ZB(3) was not unlawful by virtue of having been made following unreasonble delay (post, paras 83, 85–86, 89–90, 93–96, 150).
(2) Granting permission to proceed on ground (ii) and allowing the claim on that ground, that to satisfy the requirement of belief “on reasonable grounds” in section 244ZB(2) of the 2003 Act more had to be shown than that the Secretary of State’s belief was rationally held; that, although the Secretary of State did not have to be satisfied to a civil standard of proof, the phrase “on reasonable grounds” imposed an objective requirement for there to be an identifiable supporting basis for each of the requisite elements of the Secretary of State’s belief and that the grounds relied on were capable of scrutiny by the court; that the situations where the Secretary of State could have “reasonable grounds” were not confined to those where there had been a material change of circumstances since the prisoner was sentenced, but an absence of any new information or material developments (not necessarily a change of circumstances) since the sentencing judge’s assessment would be likely to make it very difficult for the Secretary of State to show that “reasonable grounds” for his belief existed; that, further, “significant risk” in section 244ZB(2) involved there being more than a mere possibility of occurrence and entailed a risk that was noteworthy, of considerable amount or importance; that, in the present case, the Secretary of State had not had “reasonable grounds” for believing that the claimant posed a risk that met the section 244ZB(2) criteria, given that there had been a formidable body of material before the Secretary of State which indicated that the claimant’s risks could be safely managed if she was released and the Secretary of State’s decisions contained no reasonable basis for departing from those assessments; and that, accordingly, each of the Secretary of State’s referral decisions was unlawful for absence of reasonable grounds and would be quashed on that ground (post, paras 71, 101, 109–113, 118, 121–125, 147).
(3) Granting permission to proceed on ground (iii) and allowing the claim on that ground, that the claimant’s case did not meet the eligibility criteria set out in the Secretary of State’s policy on referral decisions under section 244ZB of the 2003 Act in three significant respects, namely (i) the test of dangerousness was not satisfied in that it was not believed that the risk of serious harm to the public would be likely to materialise at or soon after the claimant’s release date, (ii) the claimant had not been assessed as posing a very high risk of serious harm on the offender assessment system (“OASys”) and (iii) there was no new or additional information not available at the time of sentencing which indicated that the claimant’s risk had increased; that the Secretary of State had had no good reason to depart from those aspects of the policy; that, in particular, the fact that the Parole Board was not limited to considering imminent risk when directing the release on licence of a prisoner serving an extended sentence pursuant to section 246A(6) of the 2003 Act did not justify departing from the requirement in the referrals policy that the prisoner posed an imminent risk of serious harm; and that, accordingly, each of the Secretary of State’s referral decisions was unlawful for failure to meet the eligibility criteria in the policy and would be quashed on that ground (post, paras 127, 129, 132–135, 142–146, 148).
The following cases are referred to in the judgment:
Pepper v Hart [
R v Lang
R v Secretary of State for the Home Department, Ex p Phansopkar [
R (Evans) v Attorney General
R (Faulkner) v Secretary of State for Justice
R (Lumba) v Secretary of State for the Home Department
R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department
R (Secretary of State for Justice) v Parole Board
R (Youngsam) v Parole Board
The following additional cases were cited in argument or referred to in the skeleton arguments:
Attorney General’s Reference (No 67 of 2014)
R v Secretary of State for the Home Department, Ex p Venables [
R (Faulkner) v Secretary of State for Justice
R (Goldsworthy) v Secretary of State for Justice
R (John) v Secretary of State for Justice
R (Noorkoiv) v Secretary of State for the Home Department
R (Oakley) v Secretary of State for Justice
R (Whiston) v Secretary of State for Justice
T v Secretary of State for Justice
Wilson v First County Trust Ltd (No 2)
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